Opinion
2016–09920 Index No. 500905/13
01-23-2019
Silvia LUQUE, Appellant, v. FLOVICTOV CAB CORP., Respondent, et al., Defendant.
William Pager, Brooklyn, NY, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.
William Pager, Brooklyn, NY, for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.
SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDERORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Flovictov Cab Corp. for summary judgment dismissing the complaint insofar as asserted against it is denied.
The plaintiff commenced this action to recover damages for personal injuries that she alleges she sustained in a motor vehicle accident. The defendant Flovictov Cab Corp. (hereinafter the defendant) moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The Supreme Court granted the motion, and the plaintiff appeals.
The defendant failed to meet its prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys. , 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler , 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The papers submitted by the defendant failed to eliminate triable issues of fact regarding the plaintiff's claim, set forth in the bill of particulars, that she sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Che Hong Kim v. Kossoff , 90 A.D.3d 969, 934 N.Y.S.2d 867 ; Rouach v. Betts , 71 A.D.3d 977, 897 N.Y.S.2d 242 ; cf. Calucci v. Baker , 299 A.D.2d 897, 750 N.Y.S.2d 675 ). Since the defendant failed to meet its prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Che Hong Kim v. Kossoff , 90 A.D.3d at 969, 934 N.Y.S.2d 867 ).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
ROMAN, J.P., HINDS–RADIX, MALTESE and LASALLE, JJ., concur.